The right to establish an easement by prescription requires uninterrupted use for twenty years, which the plaintiff failed to demonstrate.

JUDGMENT :

Heard.

2.The plaintiff in O.S. No. 463 of 1999, on the file of the I Additional District Munsif-cum-Judicial Magistrate, Bhavani, has filed this Second Appeal, aggrieved by the concurrent dismissal of his suit by the Trial Court and the First Appellate Court in A.S. No. 51 of 2010 on the file of the Sub Court, Bhavani.

3.In this appeal, the plaintiff before the Trial Court is the appellant, and the defendants are the respondents. For the sake of convenience, the parties will be referred to in the same rank as they stood in the Trial Court.

4.The brief facts necessary for the disposal of this Second Appeal are as follows:— The plaintiff instituted the suit seeking (i) a declaration of his easementary right over the suit cart track, and (ii) a decree of permanent injunction restraining the defendants from interfering with his right of user. The plaintiff, along with his brother, had purchased the property comprised in R.S. Nos. 419/1 and 419/2 under Ex.A1 — sale deed dated 30.10.1986 — which conferred a right to use the mamool cart track running from R.S. No. 414 through R.S. No. 417. Subsequently, the plaintiff’s brother executed a release deed, Ex.A4 dated 02.12.1998, relinquishing his share in favour of the plaintiff. The plaintiff thus claimed easementary rights by prescription, by grant, and by necessity.

5.The defendants, on the other hand, denied the plaintiff’s claim of right over the suit cart track, contending that it had been formed by Naina Gounder, the father of the second defendant, by utilising lands purchased from the first respondent and others, as well as lands obtained under an exchange deed, Ex.B2 dated 04.10.1983. They asserted that the suit cart track is, therefore, the absolute property of Naina Gounder and his heirs. The defendants further contended that the plaintiff has an alternative pathway to reach his property and has not used the suit cart track for the statutory period necessary to acquire an easement by prescription. They also denied that any easementary right had been created by grant.

6.Upon admitting the Second Appeal on 20.04.2022 this Court formulated the following substantial questions of law for consideration which are reproduced verbatim here below:

“a) Whether both the Courts below failed to properly appreciate the easementary right as provided under Ex.Al and A4 documents?

b) Whether the findings of both the Courts below can be termed as perverse due to improper appreciation of the oral and documentary evidence?”

7.The suit property is a cart track providing access to the Guruvarettiyur Road. The dispute pertains solely to the use of the suit cart track. The defendants claim exclusive rights over the property as the successors of Naina Gounder. The plaintiff relies upon Ex.A1, the sale deed dated 30.10.1986, which recites that the property was conveyed with the mamool right of usage over a cart track. The question is whether the cart track referred to in Ex.A1 is the same as the suit cart track. The onus of proof in this regard lies upon the plaintiff.

8.As noted earlier, the plaintiff asserts a claim of easement by prescription over the suit cart track. The acquisition of an easement by prescription is governed by Section 15 of the Indian Easements Act , 1882. In accordance with the said provision and the settled principles laid down in judicial precedents, the following essential ingredients must be established to sustain a claim of easement by prescription:

(i)The enjoyment must have been peaceable.

(ii)It must have been as an easement and as of right.

(iii)The enjoyment must have been open, uninterrupted, and continuous for a period